No.

22O155

In the Supreme Court of the United States

STATE OF TEXAS,
Plaintiff

v.

COMMONWEALTH OF PENNSYLVANIA, STATE OF GEOR-

GIA, STATE OF MICHIGAN, AND STATE OF WISCONSIN,
Defendants

ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

OPPOSITION TO MOTION FOR LEAVE TO

FILE BILL OF COMPLAINT AND MOTION FOR
PRELIMINARY INJUNCTION, TEMPROARY
RESTRAINING ORDER, OR STAY

JOSH SHAPIRO
Attorney General
of Pennsylvania

J. BART DELONE
Chief Deputy Attorney General
Appellate Litigation Section
Counsel of Record

Office of Attorney General
15th Floor
Strawberry Square
Harrisburg, PA 17120
(717) 712-3818
jdelone@attorneygeneral.gov
HOWARD G. HOPKIRK
CLAUDIA M. TESORO
SEAN A. KIRKPATRICK
Sr. Deputy Attorneys General
MICHAEL J. SCARINCI
DANIEL B. MULLEN
Deputy Attorneys General
 TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ....................................1

STATEMENT OF THE CASE ......................................2
A. Mail-in Voting under the Pennsylvania
Election Code ......................................................2
B. The 2020 General Election.................................3
C. Texas’s Allegations regarding Pennsylvania
have Already Been Rejected by Both State
and Federal Courts.............................................3
ARGUMENT .................................................................8

I. Texas’s Claims Do Not Meet the Exacting

Standard Necessary for the Court to Exercise its
Original Jurisdiction ...............................................8

II. Texas Does Not Present a Viable Case and

Controversy ............................................................13

A. Texas lacks standing to bring this action ........13

B. This untimely action is moot ...........................15

III.Texas Fails to State a Constitutional Violation ...19

A. Texas does not assert a meritorious Electors

Clause claim .....................................................19
B. Texas has no basis for any Equal Protection
or Due Process Claim against Pennsylvania...23
IV. Texas is Not Entitled to the Extraordinary
Preliminary Injunction it Seeks ............................27

A. Texas cannot meet the high standard for

injunctive relief.................................................27
B. Texas’s request to disenfranchise tens of
millions of voters who reasonably relied upon
the law at the time of the election does great
damage to the public interest ..........................30
CONCLUSION ............................................................32
 TABLE OF AUTHORITIES

Cases Page
Afran v. McGreevey,
115 Fed. Appx. 539 (3d Cir. 2004) ..........................27
Alabama v. North Carolina,
560 U.S. 330 (2010). .................................................29
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel.,
Baez, 458 U.S. 592 (1982) ........................................15
Allen v. State Bd. of Elections,
393 U.S. 544 (1969) ..................................................31
Andino v. Middleton,
2020 WL 5887393 (U.S. Oct. 5, 2020). ....................18
Andino v. Middleton,
No. 20A55 (Oct. 5, 2020) ..........................................18
Arizona State Legislature v. Arizona Indep.
Redistricting Comm’n,
576 U.S. 787 (2015) (AIRC) ..................... 5, 13, 14, 22
Arizona v. New Mexico,
425 U.S. 794 (1976) ..............................................9, 10
Beame v. Friends of the Earth,
434 U.S. 1310 (1977) ................................................17
Bognet v. Secretary Commonwealth,
2020 WL 6686120 (3d Cir. Nov. 13, 2020) ..............12
Brown v. Gilmore,
533 U.S. 1301 (2001) ................................................28

Buckley v. Valeo,
424 U.S. 1 (1976) ......................................................31

Bush v. Gore,
531 U.S. 98 (2000) ........................................ 21, 24, 25
Coleman v. Miller,
307 U.S. 433 (1939) ..................................................15

Collins v. City of Harker Heights, Tex.,

503 U.S. 115 (1992). .................................................27

Colorado v. Kansas,
320 U.S. 383 (1943) ..................................................30

Connor v. Williams,
404 U.S. 549 (1972) ..................................................31

County of Sacramento v. Lewis,

523 U.S. 833 (1998) ..................................................27

Daubert v. Merrell Dow Pharm.,

509 U.S. 579 (1983) ....................................................8

Democratic Nat’l Comm v. Wisc. State Legislature,

No. 20A66, __ U.S. __, 2020 WL 6275871 (2020) ....21

Donald J. Trump for Pres., Inc. v. Sec. of

Pennsylvania, No. 20-3371, 2020 WL 7012522
(3d Cir. Nov. 27, 2020) ............... 12, 16, 19, 20, 25, 31

EEOC v. Sears, Roebuck & Co.,

650 F.2d 14 (2d Cir. 1981) .......................................31

Florida v. Georgia,
__ U.S.__, 138 S. Ct. 2502 (2018) ................ 10, 29, 30

Hotze v. Hollins,
No. 20-20574, 2020 WL 6440440 (5th Cir. Nov. 2,
2020) .........................................................................12

Hudson v. Palmer,
468 U.S. 517 (1984) ..................................................26
Illinois v. City of Milwaukee,
406 U.S. 91 (1972) ................................................9, 11

In Donald Trump for President, Inc. v. Boockvar,

2020 WL 5997680 (W.D. Pa. Oct. 10, 2020) ..............4

In re Canvass of Absentee & Mail-in Ballots of

November 3, 2020 Gen. Election,
29 WAP 2020, 2020 WL 6866415(Pa. Nov. 23,
2020) ...........................................................................5

In re Canvassing Observation,
__ A.3d __, 2020 WL 6737895 (Pa. 2020) ............4, 20

In re November 3, 2020 General Election,

240 A.3d 591 (Pa. 2020) .......................................3, 17

Kansas v. Nebraska,
574 U.S. 445 (2015). .................................................29

Kelly v. Commonwealth,
2020 WL 7018314 (Pa., Nov. 28, 2020) ...................22

Kumho Tire v. Carmichael,

526 U.S. 137 (1999) ....................................................8

Louisiana v. Texas,
176 U.S. 1 (1900) ........................................................8

Maryland v. Louisiana,
451 U.S. 725 (1981) ..................................................13

McPherson v. Blacker,
146 U.S. 1 (1892) ................................................22, 23

Mi Familia Vota v. Abbott,

977 F.3d 461 (5th Cir. 2020) ....................................12
Mississippi v. Louisiana,
506 U.S. 73 (1992) ................................................8, 10

Missouri v. California,
No. 22O148 (U.S.) ......................................................9

New York v. New Jersey,

256 U.S. 296 (1921) ....................................................9

Nken v. Holder,
556 U.S. 418 (2009) ..................................................28

Norton v. Shelby Cnty.,

118 U.S. 425 (1886) ..................................................31

Ohio Citizens for Responsible Energy, Inc., v. NRC,

479 U.S. 1312 (1986) ................................................28

Pa. Democratic Party v. Boockvar,

238 A.3d 345 (Pa. 2020) .............................................5

Parratt v. Taylor,
451 U.S. 527 (1981) ..................................................26

Pennsylvania Democratic Party v. Boockvar,

238 A.3d 345 (Pa. 2000). ..........................................17

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) ................................ 11, 14, 15, 24

People of the State of N.Y. v. New Jersey,

256 U.S. 296 (1921) ..................................................13

Pool v. City of Houston,

978 F.3d 307 (5th Cir. 2020) ....................................12

Precision Instrument Mfg. Co. v. Auto. Maint.

Mach. Co., 324 U.S. 806 (1945) ...............................17
Raines v. Byrd,
521 U.S. 811 (1997) ..................................................13

Republican Party of Pa. v. Boockvar,

No. 20-542 (U.S.) ......................................................20

Reynolds v. Sims,
377 U.S. 533 (1964) ..................................................24

Richardson v. Texas Sec’y of State,

978 F.3d 220 (5th Cir. 2020) ....................................12

Rucho v. Common Cause,

__U.S.__, 139 S. Ct. 2484 (2019) .............................32

Ruckelshaus v. Monsanto Co.,

463 U.S. 1315 (1983) ................................................17

Scarnati v. Boockvar,
No. 20-574 (U.S.) ......................................................20

Short v. Brown,
893 F.3d 671 (9th Cir. 2018) ....................................25

Smiley v. Holm,
285 U.S. 355 (1932) ..................................................21

Snowden v. Hughes,
321 U.S. 1 (1944). .....................................................24

Socialist Labor Party v. Gilligan,

406 U.S. 583 (1972) ..................................................16

South Carolina v. North Carolina,

558 U.S. 256 (2010) ....................................................9

Spokeo, Inc. v. Robins,

__ U.S.__, 136 S. Ct. 1540 (2016) ............................14
Steel Co. v. Citizens for a Better Environment,
523 U.S. 83 (1998) ....................................................13

Texas All. for Retired Americans v. Hughs,

976 F.3d 564 (5th Cir. 2020) ....................................12

Texas Democratic Party v. Abbott,

978 F.3d 168 (5th Cir. 2020) ....................................12

Texas League of United Latin Am. Citizens v.

Hughs, 978 F.3d 136 (5th Cir. 2020) .......................12

Texas v. New Mexico,

462 U.S. 554 (1983) ....................................................9

Trump for President, Inc. v. Sec’y of Pennsylvania,

2020 WL 7012522 (3d Cir. Nov. 27, 2020) ............4, 5

Trump v. Boockvar,
2020 WL 6821992 (M.D. Pa. Nov. 21,
2020) ........................................................... 4, 5, 16, 20

Trump v. Boockvar,
4:20-cv-02078 (M.D. Pa. Nov. 18, 2020) ....................4

Trump v. Secretary of Pa.,

2020 WL 7012522 (3d Cir. Nov. 27, 2020) ..............19

Turner Broadcasting System, Inc. v. FCC,

507 U.S. 1301 (1993) ................................................28

U.S. Bancorp Mortg. Co. v. Bonner Mail P’ship,

513 U.S. 18 (1994) ....................................................31

United States v. Nevada,

412 U.S. 534 (1973) ..................................................11
Virginia House of Delegates v. Bethune-Hill,
__ U.S. __, 139 S.Ct. 1945 (2019) ............................14

Winter v. Natural Resources Def. Council, Inc.,

555 U.S. 7 (2008) ......................................................29

Constitutional Provisions
U.S. CONST. art. II, § 1, cl. 2 .......................................19
U.S. CONST. art. III, § 2 ..............................................13
U.S. CONST. amend. XIV, § 1, cl. 3 .............................26
U.S. CONST. amend. XIV, § 1, cl. 4 .............................23
Statutes
25 P.S. § 3146.8 .............................................................3
25 P.S. § 3150.11 ...........................................................2
25 P.S. § 3150.12a .........................................................2
25 P.S. § 3150.12b .........................................................3
25 P.S. § 3150.16 ...........................................................2
25 P.S. § 3191 ..............................................................23
25 P.S. § 3456 ..............................................................26
28 U.S.C. § 1251 ........................................................8, 9
Act of Oct. 31, 2019 (P.L. 552, No. 77), 2019 Pa.
Legis. Serv. 2019-77 (S.B. 421) (West) (“Act 77”) .....2
Rules
Supreme Court Rule 17.2 ...........................................29
Fed. R. Civ. P. 65 .........................................................29

Treatises
17 Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 4053 ..................................9
17 Fed. Prac. & Proc. Juris. § 4042 (3d ed.) .................9
Stephen Shapiro et al., Supreme Court Practice
622 (10th ed. 2013)...................................................10
 PRELIMINARY STATEMENT

Since Election Day, State and Federal courts

throughout the country have been flooded with frivo-
lous lawsuits aimed at disenfranchising large swaths
of voters and undermining the legitimacy of the elec-
tion. The State of Texas has now added its voice to the
cacophony of bogus claims. Texas seeks to invalidate
elections in four states for yielding results with which
it disagrees. Its request for this Court to exercise its
original jurisdiction and then anoint Texas’s preferred
candidate for President is legally indefensible and is an
afront to principles of constitutional democracy.

What Texas is doing in this proceeding is to ask this

Court to reconsider a mass of baseless claims about
problems with the election that have already been con-
sidered, and rejected, by this Court and other courts. It
attempts to exploit this Court’s sparingly used original
jurisdiction to relitigate those matters. But Texas obvi-
ously lacks standing to bring such claims, which, in any
event, are barred by laches, and are moot, meritless,
and dangerous. Texas has not suffered harm simply be-
cause it dislikes the result of the election, and nothing
in the text, history, or structure of the Constitution
supports Texas’s view that it can dictate the manner in
which four other states run their elections. Nor is that
view grounded in any precedent from this Court. Texas
does not seek to have the Court interpret the Constitu-
tion, so much as disregard it.

The cascading series of compounding defects in

Texas’s filings is only underscored by the surreal alter-
nate reality that those filings attempt to construct.
That alternate reality includes an absurd statistical
 2

analysis positing that the probability of President-

Elect Biden winning the election was “one in a quadril-
lion.” Bill of Complaint at 6. Texas’s effort to get this
Court to pick the next President has no basis in law or
fact. The Court should not abide this seditious abuse of
the judicial process, and should send a clear and un-
mistakable signal that such abuse must never be repli-
cated.

STATEMENT OF THE CASE

A. Mail-in Voting under the Pennsylvania

Election Code

In 2019, with broad and bipartisan support, the

Pennsylvania General Assembly enacted Act 77 of
2019, which made several important updates and im-
provements to Pennsylvania’s Election Code.1 Among
these were provisions that, for the first time, offered
the option of mail-in voting to all Pennsylvania elec-
tors. See 25 P.S. §§ 3150.11-3150.17. This change was
a significant development that made it easier for all
Pennsylvanians to exercise their right to vote and
brought the state in line with the practice of dozens of
other states.

Voters had until October 27, 2020, to request a mail-

in ballot for this year’s November 3rd General Election.
25 P.S. § 3150.12a(a). Act 77 set 8:00 p.m. on Election
Day as the due date for returning those ballots to the
county boards of elections. 25 P.S. § 3150.16. The Elec-
tion Code provides for a variety of safeguards to ensure

1 Act of Oct. 31, 2019 (P.L. 552, No. 77), 2019 Pa. Legis. Serv.
2019-77 (S.B. 421) (West) (“Act 77”).
 3

the integrity of this process. See 25 P.S. § 3146.8(g)(3);

25 P.S. § 3146.2c; 25 P.S. § 3146.8 (g)(4); 25 P.S. §
3150.12b(a)(2).

B. The 2020 General Election

On November 3, 2020, the Commonwealth con-

ducted the 2020 General Election. Over 6.9 million
Pennsylvanians voted in that election, with over 2.6
million of those voters using mail-in or absentee bal-
lots. The presidential election results were certified,
and Governor Wolf signed the Certificate of Ascertain-
ment on November 24, 2020.

C. Texas’s Allegations regarding Pennsylva-

nia have Already Been Rejected by Both
State and Federal Courts

Texas offers statements about Pennsylvania law

and Pennsylvania’s election administration. Befitting
of Texas’s distance and unfamiliarity with either, those
statements are littered with patently false allegations
and conclusions.

First, Texas asserts that the Secretary “abrogated”

the mandatory signature verification requirement for
absentee or mail-in ballots. Bill of Complaint at 14-15.
This is untrue. See In re Nov. 3, 2020 Election, 240 A.3d
591, 610 (Pa. 2020) (Election Code does not authorize
county election boards to reject mail-in ballots based on
an analysis of a voter’s signature. “[A]t no time did the
Code provide for challenges to ballot signatures.”). Far
from usurping any legislative authority, the Pennsyl-
vania Supreme Court refused “to rewrite a statute in
order to supply terms which [we]re not present
 4

therein.” Id. at 14. A federal judge reached the same

result. See In Donald Trump for President, Inc. v.
Boockvar, 2020 WL 5997680, at *58 (W.D. Pa. Oct. 10,
2020) (“[T]he Election Code does not impose a signa-
ture-comparison requirement for mail-in and absentee
ballots.”).

Second, Texas alleges that certain county boards of

elections did not grant poll-watchers access to the
opening, counting, and recording of absentee and mail-
in ballots. Bill of Complaint at 16. This is also untrue.
See In re Canvassing Observation, __ A.3d __, 2020 WL
6737895, *8-9 (Pa. 2020) (holding that state law re-
quires candidate representatives to be in the room but
the viewing distance is committed to the county boards,
which, in that case, was reasonable); Trump for Presi-
dent, Inc. v. Sec’y of Pennsylvania, 2020 WL 7012522,
at *8 (3d Cir. Nov. 27, 2020) (affirming dismissal of
poll-watcher claim, in part, because the Trump Cam-
paign “has already raised and lost most of these state-
law issues, and it cannot relitigate them here.”).

Third, Texas asserts that certain counties “adopted

[] differential standards favoring voters in Philadel-
phia and Allegheny Counties with the intent to favor
former Vice President Biden.” Bill of Complaint at 17.
In support of this false assertion, Texas cites to the
complaint in Trump v. Boockvar, 4:20-cv-02078 (M.D.
Pa. Nov. 18, 2020). What Texas neglects to mention is
that this complaint was dismissed, see Trump v. Boock-
var, 2020 WL 6821992 (M.D. Pa. Nov. 21, 2020), and
that dismissal was affirmed by the Third Circuit be-
cause those charges were backed by neither specific al-
legations nor evidence, Trump for President, Inc. v.
Sec’y of Pennsylvania, 2020 WL 7012522, at *8 (3d Cir.
 5

Nov. 27, 2020). Texas’s suggestion of a wide-ranging

conspiracy is a fantasy.

Fourth, Texas alleges that certain counties illegally

permitted voters to cure minor defects in mail-in bal-
lots. But under Pennsylvania law minor defects—such
as a failure to handwrite the voter’s name and/or ad-
dress on the declaration—did not, in fact, void the bal-
lot. See In re Canvass of Absentee & Mail-in Ballots of
November 3, 2020 Gen. Election, 29 WAP 2020, __
A.3d__, 2020 WL 6866415, *15 (Pa. Nov. 23, 2020) (“We
have conducted that analysis here and we hold that a
signed but undated declaration is sufficient and does
not implicate any weighty interest. Hence, the lack of
a handwritten date cannot result in vote disqualifica-
tion.”); Trump v. Boockvar, 2020 WL 6821992, *12
(M.D. Pa. 2020) (“it is perfectly rational for a state to
provide counties discretion to notify voters that they
may cure procedurally defective mail-in ballots”), aff’d
2020 WL 7012522.

Fifth, there was no state law violation when the

Pennsylvania Supreme Court temporarily modified the
deadline for the receipt of mail-in and absentee ballots,
because state constitutional law required it. See Pa.
Democratic Party v. Boockvar, 238 A.3d 345, 369-72
(Pa. 2020). Under this Court’s jurisprudence, nothing
in the Elections Clause of Article I “instructs, nor has
this Court ever held, that a state legislature may pre-
scribe regulations on the time, place, and manner of
holding federal elections in defiance of provisions of the
State’s constitution.” Arizona State Legislature v. Ari-
zona Indep. Redistricting Comm’n, 576 U.S. 787, 817-
18 (2015) (AIRC). The same is true for the Elector
Clause in Article II.
 6

Sixth, Texas avers that Pennsylvania “broke its

promise to the Court to segregate ballots and
comingled * * * illegal late ballots.” This is also utterly
false. The Secretary had already instructed that all bal-
lots received during the three day period be segregated
and counted separately. Indeed, Justice Alito adopted
these instructions by the Secretary as an order of the
Court. And the county boards of elections complied
with that order. The qualified ballots received during
the three-day extension were segregated and counted
separately. That number of ballots is too small to
change the outcome of any federal election in Pennsyl-
vania.

Finally, Texas cites to two fundamentally faulty re-

ports. The report authored by certain Pennsylvania
House Representatives (the “Ryan Report”) arrives at
incorrect numbers because it mischaracterizes the to-
tal number of absentee and mail-in ballots as only
mail-in ballots. Of the 3.1 million ballots sent out, 2.7
million were mail-in ballots and 400,000 were absentee
ballots.2 This fundamental error contaminates their
calculations.

Texas also relies on a statistical analysis prepared

by Charles J. Cicchetti, Ph.D., in support of the asser-
tion that the results in the four defendant states were
so improbable as to be evidence of misconduct. Bill of
Complaint ¶¶ 9–12. Texas’s allegations and Dr. Cic-
chetti’s analysis are nonsense.

2 By the morning of October 27, the total number of absentee

and mail-in ballots sent out was already nearly 3.1 million. At no
point after October 26 was the number of absentee and mail-in
ballots sent below 3 million.
 7

Texas first alleges that “[t]he probability of former

Vice President Biden winning the popular vote in the
four Defendant States * * * independently given Presi-
dent Trump’s early lead in those States as of 3 a.m. on
November 4, 2020, is less than one in a quadrillion.”
Bill of Complaint at ¶ 10. It bases this astounding as-
sertion on Dr. Cicchetti’s assessment, for each of the
states, of the extremely low probability that the votes
counted before 3 a.m. and those counted afterwards
were “randomly drawn from the same population.”
App. 4a-6a ¶¶ 15-19.3 But the votes counted later were
indisputably not “randomly drawn” from the same pop-
ulation of votes, as those counted earlier were predom-
inantly in-person votes while those counted later were
predominantly mail-in votes. And Texas’s own com-
plaint shows why the later-counted votes led to such a
strong shift in favor of President-Elect Biden: “Signifi-
cantly, in Defendant States, Democrat [sic] voters
voted by mail at two to three times the rate of Republi-
cans.” Bill of Complaint at ¶ 39. Both this fact and the
expectation that it would result in a shift in President-
Elect Biden’s favor as mail-in votes were counted were
widely reported months ahead of the election.

Texas further claims, again based on Dr. Cicchetti’s

analysis, that “[t]he same less than one in a quadrillion
statistical improbability” can be found “when Mr.
Biden’s performance in each of those Defendant States
is compared to former Secretary of State Hilary Clin-
ton’s performance in the 2016 general election.” Bill of
Complaint at ¶ 11. For this assertion, Dr. Cicchetti

3 We cite to the Appendix attached to the Motion to Expedite as

“App.”
 8

simply assumes that the likelihood of a given Pennsyl-

vania voter in 2020 voting for Biden was the same as
that of a Pennsylvania voter in 2016 voting for Hillary
Clinton—and then concludes, based on that assump-
tion, that the 2020 results were quite improbable. App.
6a ¶¶ 18–20. But it should not be necessary to point out
that the 2016 and 2020 elections were, in fact, separate
events, and any analysis based on the assumption that
voters in a particular state would behave the same way
in two successive presidential elections is worthless.4

ARGUMENT

I. Texas’s Claims Do Not Meet the Exacting

Standard Necessary for the Court to Exercise
its Original Jurisdiction

While this Court has “original and exclusive juris-

diction of all controversies between two or more
States,” 28 U.S.C. § 1251(a), this Court has “said more
than once that [its] original jurisdiction should be ex-
ercised only ‘sparingly.’” Mississippi v. Louisiana, 506
U.S. 73, 76 (1992). The authority to adjudicate original
disputes between States is of a “delicate and grave * *
* character,” Louisiana v. Texas, 176 U.S. 1, 15 (1900),
because it calls upon the Court to exercise the “extraor-
dinary” power “to control the conduct of one state at the
suit of another,” New York v. New Jersey, 256 U.S. 296,
309 (1921).

4 Dr. Cicchetti’s methodology and conclusions would utterly fail

the basic Daubert/Kumho standards. See Daubert v. Merrell Dow
Pharm., 509 U.S. 579 (1983); Kumho Tire v. Carmichael, 526 U.S.
137 (1999). His report certainly provides no basis for disenfran-
chising tens of millions of voters across four states.
 9

More practically, this Court is “not well suited to as-

sume the role of a trial judge.” South Carolina v. North
Carolina, 558 U.S. 256, 278 (2010) (Roberts, C.J. con-
curring). “Original jurisdiction diverts the Court from
vital tasks it is well equipped to perform to tasks that
warrant judicial resolution only as a final resort after
more political processes have failed.” 17 Fed. Prac. &
Proc. Juris. § 4042 (3d ed.).

For these reasons, this Court has interpreted the

Constitution and 28 U.S.C. § 1251(a) as making its
original jurisdiction “obligatory only in appropriate
cases,” Illinois v. City of Milwaukee, 406 U.S. 91, 93
(1972), and as providing it “with substantial discretion
to make case-by-case judgments as to the practical ne-
cessity of an original forum in this Court,” Texas v. New
Mexico, 462 U.S. 554, 570 (1983).5

The Court assesses two factors in determining

whether a case is appropriate for original jurisdiction:

5 Texas argues that this Court’s original jurisdiction is manda-

tory, not discretionary. That, of course, is contrary to long-stand-
ing precedent and hornbook constitutional law. See, e.g., Arizona
v. New Mexico, 425 U.S. 794, 796 (1976); Texas v. New Mexico, 462
U.S. 554, 570 (1983); see also 17 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 4053 (“Reasons not less
cogent point to the need of the exercise of a sound discretion in
order to protect this Court from an abuse of the opportunity to
resort to its original jurisdiction in the enforcement by States of
claims against citizens of other States.”). This case, presented to
the Court in an emergency posture, provides no occasion for the
Court to overrule its long-standing precedent. Indeed, the Court
has recently declined exactly such an invitation, see Missouri v.
California, No. 148, Orig., Pltfs. Br. 13 n.1, and to do so in this
case would only further enmesh this Court in election disputes
across the Nation.
 10

(1) the nature of the interest of the complaining State,

focusing on the seriousness and dignity of the claim,
and (2) the “availability of an alternative forum in
which the issue tendered can be resolved.” Mississippi,
506 U.S. at 77. Neither factor supports an exercise of
original jurisdiction here.

1. Before this Court “can be moved to exercise its

extraordinary power under the Constitution to control
the conduct of one State at the suit of another, the com-
plaining State must demonstrate that it has suffered a
threatened invasion of rights that is of serious magni-
tude.” Florida v. Georgia, 138 S. Ct. 2502, 2514 (2018)
(internal quotation marks omitted). Generally, this
Court exercises original jurisdiction to only hear claims
that implicate core sovereign interests, such as dis-
putes over boundaries or bodies of water. See Stephen
Shapiro et al., Supreme Court Practice 622 (10th ed.
2013). The “model case” for exercise of original jurisdic-
tion is an interstate dispute “of such seriousness that
it would amount to casus belli if the States were fully
sovereign.” Texas, 462 U.S. at 571, n.18.

This dispute, on the other hand, involves Pennsyl-

vania’s interpretation of its own laws, and Texas’s dis-
agreement with that interpretation. See Arizona, 425
U.S. at 798 (“It would, indeed, be anomalous were this
Court to be held out as a potential principal forum for
settling []controversies” when “States and nonresi-
dents clash over the application of state laws.”). And
Texas’s claims are neither serious nor dignified. It
 11

seeks to challenge the integrity of, and commandeer,

the election procedures of four sister States.6

Far from trying to vindicate its own sovereign or

quasi-sovereign interests, Texas is ultimately seeking
redress for the political preferences of those of its citi-
zens who voted for President Trump. See Pennsylvania
v. New Jersey, 426 U.S. 660, 665 (1976) (per curiam)
(States cannot, through parens patriae, bring an action
in this Court’s original jurisdiction litigating the per-
sonal claims of its citizens. Otherwise, this Court’s
“docket would be inundated”). In so doing, Texas re-
peats the same false allegations of election fraud that
have already been repeatedly rejected by other courts.
See supra at 3-6. And its request for relief—to disen-
franchise tens of millions of voters who reasonably re-
lied upon the law—is uniquely unserious.

2. Original jurisdiction will not be exercised when

there is an adequate alternative forum for resolution of
the issues at controversy. See Illinois, 406 U.S. at 93;
United States v. Nevada, 412 U.S. 534, 538 (1973). This
Court is far from the only forum to resolve the claims
presented by Texas. Again, as detailed above, other lit-
igants have pursued many of the identical claims in
state courts, lower federal courts, and in this Court’s
appellate jurisdiction.

Texas has not demonstrated that the merits of its

claims, already considered and rejected by trial and ap-
pellate courts across the Nation, are somehow

6 After reviewing the substance of our sister states’ responses,

Pennsylvania aligns with Georgia, Michigan, and Wisconsin in
their efforts to safeguard against this challenge to our sovereignty.
 12

different. See, e.g., Donald J. Trump for Pres., Inc. v.

Sec. of Pennsylvania, 20-3371, 2020 WL 7012522, at *2
(3d Cir. Nov. 27, 2020); Bognet v. Secretary Common-
wealth of Pennsylvania, 2020 WL 6686120 (3d Cir.
Nov. 13, 2020). This Court’s original jurisdiction is not
an avenue to circumvent the regular certiorari process
when claims have been repeatedly rejected by lower
courts on the merits.

Finally, if original jurisdiction is allowed, this type

of litigation will crowd the Court’s docket every four
years. Given the global pandemic, many States were
forced to modify their election process, including mail-
in voting procedures. Texas did.7 And most, if not
every, state has been sued during this election. Texas
has. See e.g. Hotze v. Hollins, 20-20574, 2020 WL
6440440, at *1 (5th Cir. Nov. 2, 2020); Pool v. City of
Houston, 978 F.3d 307 (5th Cir. 2020); Richardson v.
Texas Sec’y of State, 978 F.3d 220 (5th Cir. 2020); Texas
Democratic Party v. Abbott, 978 F.3d 168 (5th Cir.
2020); Mi Familia Vota v. Abbott, 977 F.3d 461 (5th Cir.
2020); Texas League of United Latin Am. Citizens v.
Hughs, 978 F.3d 136 (5th Cir. 2020); Texas All. for Re-
tired Americans v. Hughs, 976 F.3d 564 (5th Cir. 2020).
And like Pennsylvania, Texas has prevailed in a large
majority of these challenges. But if such failed or frivo-
lous lawsuits are sufficient to raise a question about
the integrity of a state’s election—as Texas argues—
then such an action could be filed against any state in
every presidential election.

7 See Texas Gov. Abbott’s July 27, 2020 Proclamation modifying

and suspending certain provision of the Texas Election Code,
https://gov.texas.gov/uploads/files/press/PROC_COVID-
19_Nov_3_general_election_IMAGE_07-27-2020.pdf (last visited
12/9/2020).
 13

Let us be clear. Texas invites this Court to over-

throw the votes of the American people and choose the
next President of the United States. That Faustian in-
vitation must be firmly rejected.

II. Texas Does Not Present a Viable Case and

Controversy

A. Texas lacks standing to bring this action

Article III, Section 2 of the United States Constitu-

tion limits the jurisdiction of the federal courts to re-
solving “cases” and “controversies.” U.S. CONST. art.
III, § 2; Raines v. Byrd, 521 U.S. 811, 818 (1997). That
same jurisdictional limitation applies to actions sought
to be commenced in the Court’s original jurisdiction.
Maryland v. Louisiana, 451 U.S. 725, 735-36 (1981). To
establish standing, the demanding party must estab-
lish a “triad of injury in fact, causation, and redressa-
bility.” Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 103 (1998). More specifically, that the
plaintiff has suffered injury to a legally protected inter-
est, which injury is “fairly traceable to the challenged
action and redressable by a favorable ruling.” AIRC,
576 U.S. at 800; see also Maryland, 451 U.S. at 736.
This Court has “always insisted on strict compliance
with this jurisdictional standing requirement.” Raines,
521 U.S. at 819. For invocation of the Court’s original
jurisdiction, this burden is even greater: “[t]he threat-
ened invasion of rights must be of serious magnitude
and it must be established by clear and convincing evi-
dence.” People of the State of N.Y. v. New Jersey, 256
U.S. 296, 309 (1921). Texas fails to carry this heavy
burden.
 14

First, Texas cannot establish it suffered an injury in

fact. An injury in fact requires a plaintiff to show the
“invasion of a legally protected interest”; that the in-
jury is both “concrete and particularized”; and that the
injury is “actual or imminent, not conjectural or hypo-
thetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548
(2016). According to Texas, the alleged violations of
Pennsylvania’s Election Code undermined the author-
ity granted to the Pennsylvania General Assembly un-
der the Electors Clause.8 Motion at 3, 10-11, 13-15. But
as the text of the Electors Clause itself makes clear, the
injury caused by the alleged usurpation of the General
Assembly’s constitutional authority belongs to that in-
stitution. AIRC, 576 U.S. at 800 (legislature claimed
that it was stripped of its responsibility for redistrict-
ing vested in it by the Elections Clause). The State of
Texas is not the Pennsylvania General Assembly. See
Virginia House of Delegates v. Bethune-Hill, __ U.S. __,
139 S.Ct. 1945, 1953 (2019) (noting the “mismatch be-
tween the body seeking to litigate [the Virginia House
of Delegates] and the body to which the relevant con-
stitutional provision allegedly assigned exclusive redis-
tricting authority [the General Assembly]”).

Second, Texas’s claimed injury is not fairly tracea-

ble to a violation of the Electors Clause. As discussed
above, each of Texas’s allegations of violations of

8 In its motion, Texas disclaims a “voting-rights injury as a

State” based on either the Equal Protection or Due Process
Clauses. Motion at 14. Rather, Texas claims that its legally pro-
tected interest arises from “the structure of the Constitution” cre-
ating a federalist system of government. Ibid. As discussed infra,
to the extent Texas relies on the Equal Protection and Due Process
Clauses, those “Clauses protect people, not States.” Pennsylvania,
426 U.S. at 665.
 15

Pennsylvania law has been rejected by state and fed-

eral courts.

Third, Texas fares no better in relying on parens pa-

triae for standing. It is settled law that “a State has
standing to sue only when its sovereign or quasi-sover-
eign interests are implicated and it is not merely liti-
gating as a volunteer the personal claims of its citi-
zens.” Pennsylvania, 426 U.S. at 665. The state, thus,
must “articulate an interest apart from the interests of
particular private parties.” Alfred L. Snapp & Son, Inc.
v. Puerto Rico, ex rel., Baez, 458 U.S. 592, 607 (1982).
In other words, “the State must be more than a nomi-
nal party.” Ibid. That, however, is exactly what Texas
is here. Texas seeks to “assert parens patriae standing
for [its] citizens who are Presidential Electors.” Motion
at 15. Even if, as Texas claims, the presidential electors
its citizens have selected suffered a purported injury
akin to the personal injury allegedly sustained by the
20-legislator bloc in Coleman v. Miller, 307 U.S. 433,
438 (1939), which they did not, that does not somehow
metastasize into a claim by the state rather than those
presidential electors. The 20-person bloc of legislatures
in Coleman sued in their own right without the involve-
ment of the State of Kansas. Ibid. Texas has no sover-
eign or quasi-sovereign interest at stake. It is a nomi-
nal party, at best.

B. This untimely action is moot

Texas commenced the present action on December

7, 2020, thirty-four days after the General Election and
thirteen days after the results were certified by Penn-
sylvania Governor Tom Wolf. Disenfranchising mil-
lions of voters after Pennsylvania has already certified
 16

its election results would grievously undermine the

public’s trust in the electoral system, contravene dem-
ocratic principles, and reward Texas for its inexcusable
delay and procedural gamesmanship. Accordingly, eq-
uity and the public interest disfavor an injunction or
any other relief in this case.

In a nutshell, it is too late to reverse or enjoin the

results of the election, including the actions of the Sec-
retary and Pennsylvania’s 67 county boards of elec-
tions. As a consequence, Texas’s claims are moot. See
Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972)
(challenge to election statute moot where election has
occurred and unlikely issue will recur). Moreover,
Texas seeks the unprecedented step of commandeering
the electoral process of a separate and co-equal sover-
eign state and disenfranchising almost 7 million Penn-
sylvanians who reasonably relied on the rules which
were in place when they voted on Election Day. This
Court “has been presented with strained legal argu-
ments without merit and speculative accusations * * *
unsupported by evidence. In the United States of
America, this cannot justify the disenfranchisement of
a single voter, let alone all the voters of its sixth most
populated state. Our people, laws, and institutions de-
mand more.” Boockvar, 2020 WL 6821992, at *1, aff’d
sub nom. Donald J. Trump for President, Inc. v. Sec’y
of Pennsylvania, 20-3371, 2020 WL 7012522 (3d Cir.
Nov. 27, 2020).

Texas waited until now to seek an injunction to nul-

lify Pennsylvania’s election results because all of the
other political and litigation machinations of Peti-
tioner’s preferred presidential candidate have failed.
The Trump campaign began with a series of meritless
 17

litigations. When that failed, it turned to state legisla-

tures to overturn the clear election results. Upon that
failure, Texas now turns to this Court to overturn the
election results of more than 10% of the country. Ac-
cord, Precision Instrument Mfg. Co. v. Auto. Maint.
Mach. Co., 324 U.S. 806, 814 (1945) (“[H]e who comes
into equity must come with clean hands.”). Texas liter-
ally seeks to decimate the electorate of the United
States.

Further, Texas’s failure to act with dispatch sub-

stantially undermines its contention that counting
these votes would cause it irreparable harm. Beame v.
Friends of the Earth, 434 U.S. 1310, 1313 (1977) (Mar-
shall, J., in chambers) (“The applicants’ delay in filing
their petition * * * vitiates much of the force of their
allegations of irreparable harm.”); see also Ruckelshaus
v. Monsanto Co., 463 U.S. 1315, 1318 (1983)
(Blackmun, J., in chambers) (applicant’s “failure to act
with greater dispatch tends to blunt his claim of ur-
gency and counsels against the grant of a stay”).

Texas’s delay in seeking an injunction should not be

rewarded, particularly when Pennsylvania voters re-
lied upon the Pennsylvania Supreme Court’s determi-
nation that the Commonwealth’s electoral system
which permitted the use of mail-in ballots was valid.
See, e.g., In re November 3, 2020 General Election, 240
A.3d 591 (Pa. 2020). Pennsylvania’s electors were fur-
ther entitled to rely on the Pennsylvania Supreme
Court’s conclusion that a three-day extension for re-
ceiving mail-in ballots was required under the Penn-
sylvania Constitution due to the Covid-19 pandemic
and unforeseen delays in the delivery of mail by the
United States Postal Service. See, e.g., Pennsylvania
 18

Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2000).

This good-faith reliance on the current state of the law
heavily weighs against granting an injunction at this
late date.

The Court recently recognized the primacy of voters’

reliance interests in Andino v. Middleton, 20A55 (Oct.
5, 2020). There, a South Carolina District Court order
(entered on September 18, 2020), enjoined that state’s
witness requirement for absentee ballots during the
COVID-19 pandemic. On October 5, this Court stayed
the District Court’s decision, thus reinstating the wit-
ness requirement. Recognizing that South Carolina
voters submitted ballots without witnesses in the
timeframe between the District Court’s September 18
injunction and this Court’s October 5 stay, however,
this Court specified that “any ballots cast before this
stay issues and received within two days of this order
may not be rejected for failing to comply with the wit-
ness requirement.” Andino v. Middleton, 2020 WL
5887393 *1 (U.S. Oct. 5, 2020).

This Court thus acknowledged that voters should

not be punished for relying upon the rules in place
when they voted. Similar reliance interests here com-
pel this Court to maintain the status quo for Pennsyl-
vania voters at this late juncture. Overturning Penn-
sylvania’s election results is contrary to any metric of
fairness and would do nothing less than deny the fun-
damental right to vote to millions of Pennsylvania’s cit-
izens.
 19

III. Texas Fails to State a Constitutional Viola-

tion

A. Texas does not assert a meritorious Elec-

tors Clause claim

In addition to its lack of standing and the mootness

of this untimely action, Texas’s Electors Clause claim
has no merit. There was no violation of state law, let
alone one that was so significant that it warrants crea-
tion of a novel constitutional claim.9 Again, these
claims have already been litigated. As the Third Cir-
cuit explained, such a challenge as this “[s]eek[s] to
turn * * * state-law claims into federal ones * * * [b]ut
its alchemy cannot transmute lead into gold.” Trump v.
Secretary of Pa., 2020 WL 7012522, *9 (3d Cir. Nov. 27,
2020).

As already discussed, the alleged violations of state

law were not, in fact, violations. An analysis of a voter’s
signature on his or her mail-in ballot is not permitted
by state law. See In re Nov. 3, 2020 Election, __ A.3d __,
2020 WL 6252803 at *12; see also See Donald Trump
for President, Inc., 2020 WL 5997680 at *58. Poll
watchers and candidate representatives were allowed
access to observe canvassing of mail-in ballots in Phil-
adelphia and Allegheny Counties. The Trump Cam-
paign admitted as much in federal court. See In re Can-
vassing Observation, __ A.3d __, 2020 WL 6737895 at
*4 (recounting Campaign telling federal judge that it
had a “nonzero number of people in the room” in

9 The Electors Clause provides that “[e]ach State shall appoint,

in such Manner as the Legislature thereof may direct, a Number
of Electors * * *.” U.S. Const., art. II, § 1, cl. 2.”
 20

Philadelphia). Their complaint was that the observa-

tion point was too far away, but the Pennsylvania Su-
preme Court rejected that claim, holding that “the
Election Code requires only that poll watchers be in the
room, not that they be within any specific distance of
the ballots.” Secretary of Pa., 2020 WL 7012522 at *6.,
citing In re Canvassing Observation, __ A.3d __, 2020
WL 6737895 at *8-9. 10 And county boards are not pro-
hibited by state law from instituting notice-and-cure
procedures for ballots containing defects. Boockvar,
2020 WL 6821992, *12, aff’d 2020 WL 7012522 at *2
(“the Election Code says nothing about what should
happen if a county notices these errors before election
day”).

The fourth and final claim of a state law violation—

the Pennsylvania Supreme Court’s modification of the
statutory deadline for receipt of mail-in and absentee
ballots—was addressed at length in the Common-
wealth’s opposition to petitions for writ of certiorari
that are currently pending before the Court. Republi-
can Party of Pa. v. Boockvar, No. 20-542 (U.S.); Scar-
nati v. Boockvar, No. 20-574 (U.S.). A confluence of un-
foreseen circumstances—a high demand for mail-in
ballots due to COVID and a slowdown in the postal ser-
vice—created an impending, as-applied state constitu-
tional violation of the Pennsylvania Constitution’s Free
and Equal Elections Clause. See Pa. Democratic Party,
238 A.3d at 371-72 (Pa. 2020). In order to prevent that
violation, the Pennsylvania Supreme Court modified

10 In fact, as a result of the federal litigation, an interim agree-

ment was reached whereby “all campaign observers” were permit-
ted to observe “within six feet of the first row of tables.” In re Can-
vassing Observation, __ A.3d __, 2020 WL 6737895 at *4.
 21

the statutory deadline. Such modification did not vio-

late the Electors Clause because that clause does not
relieve state legislatures of the obligation to comply
with their state constitutions. See AIRC, 576 U.S. at
818; see also Democratic Nat’l Comm. v. Wisc. State
Legislature, No. 20A66, __ U.S. __, 2020 WL 6275871,
*1 (2020) (Roberts, C.J., concurring in denial of stay)
(allowing the modification of election rules in Pennsyl-
vania because it “implicated the authority of state
courts to apply their own constitutions to election reg-
ulations”). Although Texas makes no mention of AIRC,
that case, not Chief Justice Rehnquist’s concurrence in
Bush v. Gore 531 US 98, 111 (2000) (C.J., Rehnquist)
(concurring), controls here.

Indeed, Texas’s argument is so untethered from the

actual state of the law that it makes the remarkable
claim that a state legislature’s power to direct the man-
ner by which presidential electors are appointed is “ple-
nary.” Motion at 17-18. So plenary is that power, Texas
claims, that state legislatures are not bound by either
the state constitution that establishes them or the laws
that the legislature itself has passed. Motion at 17-18.
Texas is gravely mistaken. The “exercise of the [legis-
lative] authority,” even over federal elections or the
manner by which presidential electors are selected, has
to be “in accordance with the method” prescribed in a
state’s constitution. Smiley v. Holm, 285 U.S. 355, 367
(1932); see also Ohio ex rel. Davis v. Hildebrant, 241
U.S. 565 (1916). State legislatures are, of course, also
bound by substantive provisions in their state consti-
tutions.

Nothing in the Electors Clause permits a state leg-

islature to enact a law “in defiance of provisions of [its]
 22

State’s constitution.” AIRC, 576 U.S. at 817-818. When

this Court said that state legislatures “possess[] ple-
nary authority,” it was referring to a legislature’s au-
thority to choose a particular “manner” for selecting
presidential electors: “by joint ballot,” or by “concur-
rence of the two houses,” or by “popular vote,” whether
by “general ticket” or by congressional “districts.”
McPherson v. Blacker, 146 U.S. 1, 25 (1892). As the
Court has made clear, “[t]he legislative power is the su-
preme authority, except as limited by the constitution
of the state.” Ibid.

Taking a quote from McPherson out of context,

Texas suggests that this plenary power permits a state
legislature to nullify the will of the electorate and se-
lect its own electors. Motion at 17-18. There is no sup-
port in McPherson for such an extraordinarily antidem-
ocratic proposition. Rather, in McPherson, this Court
was merely quoting from a Senate report. McPherson,
146 U.S. at 35.

Having directed the selection of presidential elec-

tors by popular vote in Pennsylvania, the General As-
sembly choosing its own slate of electors ex post would
be unconstitutional. Kelly v. Commonwealth, 2020 WL
7018314, *5 (Pa., Nov. 28, 2020) (Wecht, J., concur-
ring). “There is no basis in [state] law by which the
courts may grant [a] request to ignore the results of an
election and recommit the choice to the General Assem-
bly to substitute its preferred slate of electors for the
one chosen by a majority of Pennsylvania's voters.” Id.
at 3. The “General Assembly ‘directed the manner’ of
appointing presidential electors by popular vote nearly
a century ago.” Ibid. (quoting U.S. CONST. art. II, § 1,
cl. 2). There is nothing in the Election Code that
 23

permits the General Assembly to “circumvent [this

method and] to substitute its preferred slate of electors
for that ‘elected by the qualified electors of the Com-
monwealth.’” Id. at 4 (quoting 25 P.S. § 3191). For the
General Assembly to “alter that ‘method of appoint-
ment’” would require new legislation, done “in accord-
ance with constitutional mandates, including present-
ment of the legislation to the governor to sign or veto.”
Ibid. (quoting McPherson, 146 U.S. at 25).

There was no violation of the Commonwealth’s elec-

tion law, and no violation of the Electors Clause here.
Texas cannot succeed on the merits of this claim.

B. Texas has no basis for any Equal Protec-

tion or Due Process Claim against Pennsyl-
vania

In Counts II and III of its proposed Bill of Com-

plaint, Texas attempts to plead Equal Protection and
Due Process claims against Pennsylvania. Any such
claims are, by definition, based on the Fourteenth
Amendment. Neither claim is viable.

1. The Equal Protection clause prohibits any State

from “deny[ing] to any person within its jurisdiction
the equal protection of the laws.” U.S. CONST. amend.
XIV, § 1, cl. 4. By its terms, this provision operates as
a constraint on what “any State” may do to any “person
within its jurisdiction.” In other words, the Equal Pro-
tection Clause protects persons in a given state from
unequal treatment at the hand of that state. Thus,
someone in Texas who has been treated unequally by
Texas may be able to pursue an equal protection cause
of action against Texas. But the Equal Protection
 24

Clause does not afford Texas itself, or any other state,

a constitutional claim against another state. Pennsyl-
vania, 426 U.S. at 665 (Equal Protection Clause pro-
tects people not states). For this reason alone, Texas
cannot press an Equal Protection claim against four of
its sister States.

Apart from the foregoing textual argument, and

turning to Texas’s own version of its putative Equal
Protection claim, the bottom line is the same. That
claim alleges that Pennsylvania violated the Equal
Protection clause by imposing differential standards
for processing and tabulating presidential election bal-
lots (including by implementing notice-and-cure proce-
dures for Democratic voters and affording inadequate
access to Republican poll watchers). See Bill of Com-
plaint ¶¶ 134-139. According to Texas, these alleged
differences cannot be reconciled with Bush v. Gore, 531
U.S. 98 (2000), and contravened the bedrock one-per-
son, one-vote concept. Neither theory withstands scru-
tiny.11

“The unlawful administration by state officers of a

state statute fair on its face, resulting in its unequal
application to those who are entitled to be treated
alike, is not a denial of equal protection unless there is
shown to be present in it an element of intentional or
purposeful discrimination.” Snowden v. Hughes, 321
U.S. 1, 8 (1944). On the facts as Texas has pled them,
“intentional or purposeful discrimination” cannot be in-
ferred. This is so because, if for no other reason, voting

11 To support its one-person one-vote assertions, Texas cites

Reynolds v. Sims, 377 U.S. 533 (1964), a reapportionment case
with no direct bearing on the present situation.
 25

operations in Pennsylvania are administered by 67 dif-

ferent counties.

Any suggestion by Texas that variations in county

election procedures amount to an equal protection vio-
lation under Bush v. Gore is misguided. Bush was ex-
pressly “limited to [its] present circumstances,” which
involved a state court order requiring a manual recount
but without prescribing a uniform standard for doing
so. Id. at 109. Bush was concerned with ensuring the
fairness of a post-election recount, and this Court de-
termined that the arbitrary, ad hoc standards for
gleaning a voter’s intended choice of candidate “lacked
sufficient guarantees of equal treatment.” 531 U.S. at
107. Here, there is no allegation of state or county offi-
cials making determinations about which candidate a
Pennsylvania voter selected. And the question before
the Court in Bush was “not whether local entities in the
exercise of their expertise, may develop different sys-
tems for implementing elections.” Id. at 109. Indeed,
variations in county election procedures are permissi-
ble. See, e.g., Donald J. Trump for President, Inc. v.
Secretary, No. 20-3371, 2020 WL 7012522, at *6-7 (3d
Cir. Nov. 27, 2020) (“Reasonable county-to-county var-
iation is not discrimination. Bush v. Gore does not fed-
eralize every jot and tittle of state election law.”).

Moreover, allowing some Pennsylvania voters to

cast provisional ballots or cure ballots did not prevent
anyone from voting or burden anyone’s right to vote.
Rather, it made voting easier—which is not an equal
protection violation at all, see, e.g., Short v. Brown, 893
F.3d 671 (9th Cir. 2018), and certainly not a violation
of any equal protection right purportedly possessed by
the state of Texas. See, e.g., Donald J. Trump for
 26

President, Inc., 2020 WL 7012522 (rejecting similar

Equal Protection claims).

2. Separately, Texas maintains that Pennsylvania

has somehow denied it due process of law. See Bill of
Complaint at ¶¶ 140-144. This attempted claim, too,
withers upon scrutiny.

The Due Process clause says, “nor shall any State

deprive any person of life, liberty, or property, without
due process of law.” U.S. CONST. amend. XIV, § 1, cl. 3.
Here, too, the cited provision limits what “any State”
may do to “any person,” unless the state affords the per-
son with “due process of law.” Because Texas is a state,
not a “person,” Texas is not in a position to complain
that Pennsylvania somehow violated its supposed right
to due process.12

The Due Process Clause also contains a substantive

component, which limits what governments may do re-
gardless of the fairness of the procedures it utilizes.

12 Even if Texas could make such a claim, no such claim is actu-

ally presented here. Texas cites two prisoner cases (having noth-
ing whatsoever to do with elections) to suggest that random, un-
authorized acts by state actors may give rise to a procedural due
process claim in favor of an individual. See Bill of Complaint at ¶
142 (citing Parratt v. Taylor, 451 U.S. 527, 537-541 (1981), and
Hudson v. Palmer, 468 U.S. 517, 532 (1984)). This is beside the
point. When it comes to administering a state-wide election, offi-
cials are of course authorized to make judgment calls and policy
determinations. State law, moreover, affords appropriate avenues
of redress. Under the Pennsylvania Election Code, election-related
issues may be—and have been—sorted out in state court when cir-
cumstances warrant. See, e.g. 25 P.S. § 3456 (regarding election
contests). In short, the procedural rights of candidates and voters
are protected; Texas has nothing to complain about nor any basis
to seek redress.
 27

See County of Sacramento v. Lewis, 523 U.S. 833, 846

(1998). The range of recognized potential substantive
due process claims, however, is quite narrow. See Col-
lins v. City of Harker Heights, Tex., 503 U.S. 115, 125
(1992). Executive action violates substantive due pro-
cess only when it shocks the conscience, and “only the
most egregious official conduct” meets this demanding
standard. Lewis, 523 U.S. at 846. To shock the con-
science, official action must be egregiously wrong, op-
pressive, “intended to injure in some way unjustifiable
by any government interest.” Id. at 849.

As Texas avers, see Bill of Complaint, at ¶ 141, in

the election context, patent and fundamental unfair-
ness may amount to a substantive due process viola-
tion. But this can only occur where the government of-
ficial’s actions have resulted in total and complete dis-
enfranchisement. See Afran v. McGreevey, 115 Fed.
Appx. 539, 544 (3d Cir. 2004) (summarizing caselaw
but denying relief). Texas does not (and could not) al-
lege that Pennsylvania’s actions disenfranchised it. In-
deed, it is Texas that seeks complete disenfranchise-
ment.

IV. Texas is Not Entitled to the Extraordinary

Preliminary Injunction it Seeks

A. Texas cannot meet the high standard for

injunctive relief

In its motion Texas asks this Court to issue an in-

junction, or, alternatively, issue a stay, that would bar
Pennsylvania (and three other states) from certifying
its election results and from participating in the Elec-
toral College. Motion at 1-2. In making that request,
 28

Texas muddles the distinction between a stay and an

injunction, as the only conceivable action this Court
could take would be to issue an injunction. Texas then
proceeds to cite the incorrect standard, ignoring the
heightened threshold for issuance of an injunction in
an original jurisdiction suit between two states. Texas
fails to meet that exceedingly high threshold.

In Nken v. Holder, 556 U.S. 418, 428 (2009), this

Court clarified that “[a]n injunction and a stay have
typically been understood to serve different purposes.”
While an injunction is directed towards the conduct of
a particular party and is a means by which a court pro-
hibits some specified act, a stay, by contrast, “operates
upon the judicial proceeding itself” by halting or post-
poning some portion of the proceeding, or by temporar-
ily divesting a judicial order of enforceability. Ibid.
Stated another way, a stay “simply suspends judicial
alteration of the status quo, while injunctive relief
grants judicial intervention that has been withheld by
lower courts.” Id. at 429 (citing Ohio Citizens for Re-
sponsible Energy, Inc., v. NRC, 479 U.S. 1312, 1313
(1986) (Scalia J., in chambers); Brown v. Gilmore, 533
U.S. 1301, 1303 (2001) (Rehnquist, C.J., in chambers)
(“Applicants are seeking not merely a stay of a lower
court judgment, but an injunction against the enforce-
ment of a presumptively valid state statute.”); Turner
Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1302
(1993) (Rehnquist, C.J., in chambers) (“By seeking an
injunction, applicants request that I issue an order al-
tering the legal status quo.”) (emphasis added, internal
brackets and quotations omitted).

Texas identifies no specific judicial decision that

this Court should stay. Rather, it is Texas that seeks to
 29

upend the status quo by getting this Court somehow to

reverse the certification of election results and prevent
Pennsylvania from participating in the Electoral Col-
lege. It thus seeks an injunction. But even properly
framed as a request for an injunction, Texas identifies
the incorrect standard.

Texas urges this Court to apply the standard for a

preliminary injunction under Fed. R. Civ. P. 65 that a
Federal district court would apply in a dispute between
two private parties. See Motion at 6 (citing Winter v.
Natural Resources Def. Council, Inc., 555 U.S. 7, 20
(2008)). Though this Court’s rules specify that in origi-
nal jurisdiction suits between states, the Federal Rules
of Civil Procedure and Evidence “may be taken as
guides,” see Supreme Court Rule 17.2, this Court is not
bound by those rules. Alabama v. North Carolina, 560
U.S. 330, 344 (2010). Here, the relief Texas seeks—ju-
dicial disenfranchisement of huge swaths of voters
across multiple states—bears no resemblance to the re-
lief typically sought in disputes between private par-
ties. This Court’s decisions call for an appropriately
heightened standard in seeking such unprecedented
relief in a suit between sovereign states.

When this Court hears an original jurisdiction suit

between states, its role differs significantly from the
one the Court takes in suits between private parties.
Kansas v. Nebraska, 574 U.S. 445, 453 (2015). Given
the sovereign status and “equal dignity” of states, this
Court has held that “a complaining State must bear a
burden that is much greater than the burden ordinarily
shouldered by a private party seeking an injunction.”
Florida, 138 S.Ct. at 2514 (internal quotation marks
and citation omitted). The need for caution in
 30

adjudicating the relative rights of States necessitates

“expert administrate rather than judicial imposition of
a hard and fast rule.” Colorado v. Kansas, 320 U.S. 383,
392 (1943). Thus, “the complaining State must demon-
strate that it has suffered a ‘threatened invasion of
rights’ that is of ‘serious magnitude.’” Florida, 138
S.Ct. at 2414 (citations omitted). The complaining
State must make that showing by “clear and convincing
evidence” of a “real or substantial injury.” Ibid.

Whatever the standard, Texas cannot meet it. Noth-

ing in the text, history, or structure of the Constitution
supports Texas’s view that it can dictate the manner in
which four sister States run their elections, and Texas
suffered no harm because it dislikes the results in those
elections. Further, Texas’s claims are also moot and
barred by laches. The predicate for Texas to take action
was established well before Election Day, but it waited
until now—after all four States have certified their
elections—to bring this action. While Texas waited to
see the results, millions of voters relied on the settled
rules. Those voters should not be punished for not
choosing Texas’s preferred candidate, and Texas
should not be rewarded for its unreasonable delay in
bringing this action.

B. Texas’s request to disenfranchise tens of

millions of voters who reasonably relied
upon the law at the time of the election
does great damage to the public interest

Texas’s request to disenfranchise tens of millions of

voters is far too extreme a remedy. In exercising its re-
medial discretion, this Court consistently takes ac-
count of the public interest in stability and order. See
 31

U.S. Bancorp Mortg. Co. v. Bonner Mail P’ship, 513

U.S. 18, 26 (1994) (placing burden on petitioner to show
“equitable entitlement to the extraordinary remedy”
requested); Norton v. Shelby Cnty., 118 U.S. 425, 441
(1886). That obligation counsels against remedies that
could provoke “chaos and uncertainty.” EEOC v. Sears,
Roebuck & Co., 650 F.2d 14, 17 (2d Cir. 1981); see also,
e.g., Buckley v. Valeo, 424 U.S. 1, 142-143 (1976) (per
curiam).

This Court’s decisions in election cases have re-

flected those principles by refusing to invalidate an
election after it has occurred despite constitutional or
other legal infirmities with the election. See, e.g., Con-
nor v. Williams, 404 U.S. 549, 550-551 (1972) (per cu-
riam) (assuming Fourteenth Amendment violation in
conduct of elections but “declin[ing] to disturb” them);
Allen v. State Bd. of Elections, 393 U.S. 544, 571-572
(1969) (rejecting request by appellants and Solicitor
General that the Court “set aside” elections conducted
in violation of federal law).

At bottom, Texas seeks to invoke this Court’s origi-

nal jurisdiction to achieve the extraordinary relief of
disenfranchising all Pennsylvanians who voted and
one-tenth of the voters in the entire Nation. Such relief
would, of course, be “drastic and unprecedented, disen-
franchising a huge swath of the electorate.” Donald J.
Trump for President, Inc., 2020 WL 7012522, at *7. In
support of such a request, Texas brings to the Court
only discredited allegations and conspiracy theories
that have no basis in fact. And Texas asks this Court
to contort its original jurisdiction jurisprudence in an
election where millions of people cast ballots under
truly extraordinary circumstances, sometimes risking
 32

their very health and safety to do so. Accepting Texas’s

view would do violence to the Constitution and the
Framers’ vision, and would plunge this Court into “one
of the most intensely partisan aspects of American po-
litical life.” Rucho v. Common Cause, 139 S. Ct. 2484,
2507 (2019).

CONCLUSION

For the reasons set forth above, the Court should

deny the motion for leave to file a bill of complaint and
the motion for preliminary injunction and temporary
restraining order or, alternatively, for stay and admin-
istrative stay.

Respectfully submitted,

JOSH SHAPIRO
Attorney General

J. BART DeLONE
Chief Deputy Attorney General
Appellate Litigation Section
Counsel of Record

HOWARD G. HOPKIRK
CLAUDIA M. TESORO
SEAN A. KIRKPATRICK
Sr. Deputy Attorneys General

MICHAEL J. SCARINCI
DANIEL B. MULLEN
Deputy Attorneys General
 33

Office of Attorney General

15th Floor, Strawberry Square
Harrisburg, PA 17120
Phone: (717) 783-3226
Cell: (717) 712-3818
jdelone@attorneygeneral.gov

DATE: December 10, 2020